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Judiasih, The Status of Matrimonial Property Ownership in Mixed Marriages
spouses establish they irst habitual residence after marriage. Nonetheless, in the following
cases, the matrimonial property regimes is governed by the internal law of the state of
the common nationality of the spouses:
1 where the declaration provided for in
Article 5 has been made by that State and its application to the spouses is
not excluded by the provisions of the second paragraph of that Article;
2 where that State is not a Party to the
Convention and according to the rules of private international law of that
State its internal law is applicable, and
the spouses establish their irst habitual residence after marriage –
a in a State which has made the
declaration provided for in Article 5, or
b in a State which is not a Party to
the Convention and whose rules of private international law also
provide for the application of the law of their nationality.
3 where the spouses do not establish their
irst habitual residence after marriage in the same State.
If the spouses do not have their habitual residence in the same State, nor have a
common nationality, their matrimonial property regime is governed by the internal
law of the State with which, taking all circumstances into account, it is most closely
connected.
The conclusion taken from the above article is that at the start, husbands and wives are given
freedom to choose which laws apply to their marital property, however if they do not use this opportunity,
laws of the country where the couple reside in to live their daily lives would apply.
Husbands and wives within a marriage may also conduct legal actions with third parties,
including undertaking credit agreements and using their marital property as securities. In conducting
legal actions with third parties, Article 9 of the Convention regulates as follows:
The effects of the matrimonial property regimes on the legal relations between a
spouse and the third party are governed by the law applicable to the matrimonial property
regimes in accodance with the convention. Nonetheless, the law of a contracting state
may provide that the law applicable to the matrimonial property regimes may not be
relied upon by a spouse agains a third party when either that spouse habitual residence
in its territorry, unless any requirements of
publicity or registrations speciied by that law have been complied with, or the legal
relations between that spouse and the third party arise at a time when the third party
either knew or should have known of the law applicable to the matrimonial property
regimes. The law of a contracting state where an immovables is situated may provide an
analoguesrole for the legal relations between a spouse and a third party as regards that
immovables. A contracting state may specify by declaration the scope of the second and
third paragraphs of this article.
20
The Convention also regulates marital property in mixed marriages in the form of lands; such could
be found within Article 6 of the Convention which explicitly states that the law applicable for this
matter is the law whereby the asset is obtained or the immovable asset is located. The Article stipulates
that: The spouses, whether or not they have
designated a law under the previous paragraph or under Article 3, may designate
with respect to all or some of the immovables, the law of the place where these immovables
are situated. They may also provide that any immovables which may subsequently be
acquired shall be governed by the law of the
palce where such immovables are situated.
21
2. Ownership Status over Immovable Assets
in Mixed Marriages
Ownership over immovable assets such as land in Indonesia is regulated under the Indonesian
Agrarian Law as a form of the uniication of
20
Article 9 Convention on The Law Applicable To Matrimonial Property Regimes, 14 March 1978.
21
Article 6 Convention on the Law Applicable to Matrimonial Property Regimes, 14 March 1978.
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MIMBAR HUKUM Volume 27, Nomor 1, Februari 2015, Halaman 145-154
land laws in Indonesia and has applied since 24 September 1960. The Indonesian Agrarian Law
gives guarantees equal opportunities to Indonesian citizens in obtaining rights over land and its beneits
for himherself or hisher family, as found within
Article 9 paragraph 2 of the Indonesian Agrarian Law.
22
Land ownership by Indonesian citizens is among Indonesia’s constitutional rights. Article
28 letter H paragraph 4 of the 1945 Indonesian Constitution stipulates that every person shall have
the right to own personal property and such property may not be unjustly held possession of any party.
23
Article 36 of the Indonesian Human Rights Law also states that every person has the right to own
property, both alone and in association with others, for the development of himself, his family, nation,
and society through lawful means.
24
This right as an Indonesian citizen cannot be removed,
reduced, or limited by any party except for firmly established circumstances as regulated
under law. All land ownership and land use must be
based on authority as given and protected by law. The existence of a legal basis creates a concrete
legal relationship between the land owner and the land they own. Such legal ownership gives
authority to the land owner to own the land physically and allows for the use of that land in
line with the regulations as set in the Indonesian Agrarian Law and other laws.
Land rights for private use is regulated under Article 16 paragraph 1 of the Indonesian
Agrarian Laws. Among the types of land rights, ownership rights is the strongest and most holistic
right as land ownership rights gives authority to the holder of rights to freely act upon the land he
she owns over an indeinite time.
25
According to Article 21 paragraph 1 of the Indonesian Agrarian Law, only Indonesian
citizens may have land ownership rights.
26
This Article is a manifestation of the nationality principle adopted by the Indonesian Agrarian Law.
As a sovereign territory, all areas within Indonesia’s territory is an entity in which the Indonesian
society have an eternal connection with. Thus the nationality principle has consequences towards
land ownership rights in Indonesia, namely that only Indonesian citizens may have the fullest
relation with the earth water and air space including the natural resources contained therein.
27
The applicability of the nationality principle adopted by the Indonesian Agrarian Law with respect
to land ownership rights consequently implies the different treatment applied towards Indonesian
citizens and foreign nationals.
28
As a legal subject, foreign nationals may not have ownership over land
that is strong, full, and inheritable.
29
The nationality principle in the Indonesian Agrarian Law fully prohibits foreign nationals to
have land ownership rights, permitted land rights for foreign nationals according to the Indonesian
Agrarian Law includes the right of use over land hak pakai atas tanah and the right to lease land
for building hak sewa atas bangunan.
30
The following elaborates the right of use as referred to
22
Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
23
Article 28 letter H paragraph 4 of the 1945 Constitution of the Republic of Indonesia.
24
Article 36 Law Number 39 of 1999 concerning Human Rights State Gazette of the Republic of Indonesia Year 1999 Number 165, Supplement to the State Gazette of the Republic of Indonesia Number 3886.
25
Article 16 paragraph 1 Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
26
Article 21 paragraph 1 Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
27
Article 9 paragraph 1 Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
28
Martin Roestamy, 2011, Konsep-Konsep Hukum Kepemilikan Properti Bagi Orang Asing Dihubungkan dengan Hukum Pertanahan, Alumni, Bandung, p. 98.
29
Ibid. p. 204.
30
Article 42 letter b jo. Article 45 letter b Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
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Judiasih, The Status of Matrimonial Property Ownership in Mixed Marriages
by Indonesian Agrarian Law: The right of use is the right to use and
or to collect produce from, land directly controlled by the State or land owned
by another individual which grants authority and obligations as determined
in the relevant right-granting decree by the official who is authorized to grant
it or as determined in the agreement with the owner of the land, where the
agreement is not a land-lease agreement or land-exploitation agreement, given that
everything is possible as long as it does not contradict the spirit and provisions of
this Act.
31
Whilst the right to lease land for building, according to Article 44 paragraph 1 of the
Indonesian Agrarian Law gives authority to the holder of rights to utilize land owned by another
for the purpose of building, by paying to its owner an amount of money as rent.
32
Despite this, land ownership rights may still be possessed by a foreign nation, because in
several circumstances foreign nationals can legally have legal land ownership rights. One of which
through the fusion of assets in a marriage between an Indonesian citizen and a foreign nationals, or
‘mixed marriage’ as referred to in Article 57 of the Indonesian Marriage Law.
Marriage undertaken by Indonesian citizens, conducted legally according to applicable law, will
bring legal consequences; this includes marriages between Indonesian citizens and foreign nationals
who abide by different state laws. One of the consequences of a marriage is the fusion of assets
between a wife and husband which then becomes marital property jointly owned by the husband and
wife. If a husband or wife of Indonesian citizenship
buys land with right of ownership during the marriage, then this land will become marital
property of the husband and wife. In effect, the land bought by the husband or wife of Indonesian
citizenship will, according to law, be owned by his her spouse who is a foreign national. Because of
this, marital property in mixed marriages causes foreign nationals to have similar authority and
standing as Indonesian citizens to have marital property in the form of right of ownership.
33
In overcoming this possibility, the Indonesian Agrarian Law requires foreign nationals who have
land ownership rights due to the fusion of assets in a mixed marriage, to relinquish this right within a
1 one year time period after receiving the right. If after this time limit the right of ownership is
relinquished, then that right is removed by law and the land falls to the state. Further elaboration of this
could be found within Article 21 paragraph 3 of the Indonesian Agrarian Law:
A foreigner, following the entry into force of this Law has obtained the right of ownership
by way of inheritance without a will or by way of joint ownership of property resulting from
marriage and an Indonesian citizen holding a land ownership right who, following the
entry into force of this Law, loses Indonesian citizenship is obliged to relinquish that right
within one year following the date of the ownership right is acquire in the case of the
former or following the date upon which Indonesian citizenship is lost in the case of
the latter. If following the expiry of the said time period, the right is not relinquished,
then the said right is nulliied for the sake of law and the land falls to the State with the
proviso that the rights of other parties which
encumber the lands remain in existence.
34
The relinquishment of the land ownership right could be done by way of selling or through
grants hibah.
31
Article 41 paragraph 1 Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
32
Article 44 paragraph 1 Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
33
Lies Adityawati, 2012, Kepemilikan Hak Milik Atas Tanah dalam Perkawinan Campuran Tanpa Perjanjian Kawin Ditinjau dari UUPA dan UU Perkawinan, Thesis, Fakultas Hukum Universitas Padjadjaran, Bandung, p. 90.
34
Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
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MIMBAR HUKUM Volume 27, Nomor 1, Februari 2015, Halaman 145-154
According to Article 20 paragraph 2 of the Indonesian Agrarian Law, right of ownership can
change hand and be transferred to other parties.
35
The changetransfer of rights means that the right of ownership over land is transferred to other
parties because of a legal action.
36
PThe referred legal actions can done through sales, exchanges,
grants hibah, the inclusion of the property to a company’s equity inbreng, auctions, division of
joint rights, granting right to build or right of use over land, security rights hak tanggungan and
granting power to give out security rights.
37
One permissible legal action to prevent the fusion of assets n a mixed marriage is through
the making of a prenuptial agreement. Prenuptial agreements can be held to regulate the consequences
of marriage which will almost always be related to marital property. A prenuptial agreement or
perjanjiian kawin is entered into by the contracting parties immediately before the celebration of the
marriage.
38
In relation to prenuptial agreements, Article 29 of the Indonesian Marriage Law states
that: At the time of or prior to the marriage
performance, both parties may by mutual consent conclude an ante nuptial contract in
writing, legalized by the registrar of marriage, where upon the contents shall also be binding
on third parties in so far as third parties are affected.
39
Prenuptial agreements in mixed marriages are based on the consent and agreement of both parties the to-
be husband and wife. The consent and agreement of both parties shows fairness as both parties have
the same right to prepare and enter into a prenuptial agreement. Such is in line with the theory of justice
as proposed by John Rawls who supposes two 2 important principles: the principle of equal liberty
and the principle of equal opportunity.
40
Prenuptial agreements are important to anticipate problems, particularly problems related
to assets, thus when a marriage is terminated, most especially due to divorce, the best equitable solution
for the husband and wife could be found. On this matter, it is interesting to also note a statement by
G.W. Patton, “in marriage, as long as love persists, there is little need of law to rule the relation between
husband and wife, but the solicitor comes in through the door as love lies out of the window”.
41
On the ownership of marital property, especially on land ownership rights in mixed
marriages, there is the possibility that there will be problems if the mixed marriage couple gets a
divorce, because at the end they have to divide their jointly owned marital property. This should not
be problem as long as the parties do not have any dispute over the joint ownership of marital property
and that the property legally belongs to the mixed marriage couple. If they do not, the land ownership
right part of their marital property which uses the name of the Indonesian spouse, can inally be
divided according to the Indonesian Marriage Law.
The division could be done through the selling of land whereby the proceeds could be divided into
two for each party or could also be done through the division of land. In dividing land, the foreign
national will receive hisher part of the land and only has 1 one year over the land’s ownership rights,
then heshe must relinquish hisher right over the land according to under Article 21 paragraph 3 of
the Indonesian Agrarian Law. The relinquishment of right is done throught the act of selling or giving
the rights of ownership over the land away.
35
Article 20 paragraph 2 Law Number 5 of 1960 concerning Basic Regulations on Agrarian Law State Gazette of the Republic of Indonesia Year 1960 Number 104, Supplement to the State Gazette of the Republic of Indonesia Number 2043.
36
Muhamad Yamin Lubis and Abd. Rahim Lubis, 2010, Hukum Pendaftaran Tanah, Mandar Maju, Bandung, p. 30.
37
Ibid.
38
Evita M. Roche and David C. Simmonds, 1988, Marriage Contract, The Carswell Company Limited, Ontario, Canada, p. 178.
39
Article 29 Law No. 1 of 1974 concerning Marriage State Gazette of the Republic of Indonesia Year 1974 Number 1, Supplement to the State Gazette of the Republic of Indonesia Number 3019.
40
John Rawls, 2006, Teori Keadilan, Dasar-Dasar Filsafat Politik untuk Mewujudkan Kesejahteraan Sosial dalam Negara trans: Uzair Fauzan dan Heru Prasetyo, Pustaka Pelajar, Yogyakarta, p. 361.
41
G. W. Patton, 1951, A Text Book of Jurisprudence, Oxford Clarendon Press, London, p. 53.
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Judiasih, The Status of Matrimonial Property Ownership in Mixed Marriages
Forms of agreements which indirectly transfers land ownership rights to foreign nationals
include Land Ownership Agreement Perjanjian Pemilikan Tanah or PPT and nominee arrangements
in a Land Ownership Agreement whereby the Indonesian citizen admits that the land registered
under hisher name does not belong to himher, but to the foreign national who has provided funds to
buy the land ownership rights including structures on it. The Indonesian citizens then gives irrevocable
authority to the foreign national to conduct any legal action towards the land ownership rights and
its structures. Based on the above, there has been several
practice of abuses with nominee agreements such as this. By using the Indonesian citizen as a trustee or
nominee is an offence as its substance conlict with the Indonesian Agrarian Law, especially Article 26
paragraph 2: Every salepurchase, exchange, gift, and
bequest by a will and every other acct which are intended to either directly or indirectly
transfer an ownership right to a foreigner or to a person of Indonesian citizenship who
concurrently holds foreign citizenship or to a corporate body other than those stipulated
by the Government in line with paragraph 2
of Article 21 shall be nulliied for the sake of law and the land in question shall go to the
State with the understanding that any other parties’ rights which encumber the land shall
remain in existence and that all the payments which the owner of the land may have
received cannot be reclaimed.
42
Consequently, nominee agreements gives Indonesian citizens and foreign national in a mixed marriage
the right to own land by registering that land under the spouse holding Indonesian citizenship who has
been appointed as nominee. The Indonesian citizen’s name is used to enable himher to buy land whereby
funding originates from the parties involved in the mixed marriage.
C. Conclusion
